Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents. (b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets. (c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 3 contracts
Samples: Loan Financing and Servicing Agreement (FS Investment Corp III), Loan Financing and Servicing Agreement (FS Investment Corp III), Loan Financing and Servicing Agreement (FS Investment Corp III)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain conduct its business solely in its own separate books name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity books of account separate from those of TPVG and any other Person; Affiliate thereof.
(ivc) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have a board of managers separate from that its assets listed on any financial statement of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, however that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if TPVG provided that (Ai) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate TPVG or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet sheet.
(if g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower prepares its own separate balance sheet); underlying the transactions described in the Transaction Documents as official records of the Borrower.
(ixh) pay its own liabilities only out of its own funds; (x) It shall maintain an arm’s arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and each charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of its other Affiliates; (xi) not expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others; .
(xiis) allocate fairly and reasonably any overhead expenses that are shared with It shall not act as an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations agent of any other Person; Person in any capacity.
(xvt) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity; identity from TPVG or any other Person.
(xviv) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain adequate capital a sufficient number of employees in light of its contemplated business purposeoperations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, transactions and liabilities and pay its operating expenses and liabilities from its own assets; or (xviiii) cause its board to be made, any transfer or distribution of managers to meet at least annually or act the Borrower’s assets, except, in each case, as may be made pursuant to written consent the Transaction Documents or other duly authorized and keep minutes legal actions of such meetings TPVG and actions the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and observe in otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all respects all other Delaware times comply with the provisions of its limited liability company formalities; agreement.
(xviiidd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not acquire amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the obligations prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or any securities of conditioned) or (ii) its Affiliates; limited liability company agreement except in accordance therewith.
(xixff) It shall cause the managersagents, officers, agents officers and other representatives of the Borrower Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests provisions of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documentsthis Section 10.5.
(bgg) The Borrower It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not (i) engage, directly or indirectly, in commingle its assets with assets of any business, other than the actions required or permitted to be performed under the preceding clause (a); Person.
(ii) fail to be solvent; (iii) releaseIt shall, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(cjj) The Borrower It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not (require TPVG to make additional capital contributions to the Borrower. It will insure that it and shall TPVG do not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain nonconsolidation non-consolidation matters.
Appears in 3 contracts
Samples: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(i) maintain Except for income tax and consolidated accounting purposes, it shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivj) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law.
(k) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(l) It shall maintain separate financial statements, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bm) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of and as otherwise expressly required or permitted by the BorrowerTransaction Documents, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vn) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(o) It shall use separate invoices bearing its own name.
(p) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(q) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(r) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vis) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents.
(t) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(u) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(v) Except as expressly permitted by the Transaction Documents, it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or, except for Equity Securities acquired in connection with the acquisition of a Collateral Obligation or an offer, exchange, workout, restructuring or exercise of remedies with respect thereto, own any equity interest in any other entity.
(w) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cx) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(y) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(z) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(aa) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of one Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of such Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (c) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 2 contracts
Samples: Loan Financing and Sale Agreement (AB Private Credit Investors Corp), Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person[reserved]; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid by the Borrower under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAPAppropriate Accounting Principles; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually member or act pursuant to written consent and members keep minutes of such all meetings and actions by written consent and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its AffiliatesAffiliates except as otherwise permitted under the Transaction Documents; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower[reserved]; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents; and (xxi) not divide or permit any division of the Borrower under Applicable Law.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a)) or otherwise contemplated pursuant to the Transaction Documents; (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner Collateral and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain conduct its business solely in its own separate books name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity books of account separate from those of TPVG and any other Person; Affiliate thereof.
(ivc) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have a board of managers separate from that its assets listed on any financial statement of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, however that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if TPVG provided that (Ai) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate TPVG or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet sheet.
(if g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower prepares its own separate balance sheet); underlying the transactions described in the Transaction Documents as official records of the Borrower.
(ixh) pay its own liabilities only out of its own funds; (x) It shall maintain an arm’s arm’s-length relationship with the Equityholder TPVG and each of its other Affiliates; (xi) , and shall not hold itself out or its credit or assets as being available to satisfy liable for the debts and obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations TPVG or any securities of its Affiliates; .
(xixi) cause It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the managers, officers, agents books and other representatives records of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests principal business office of the Borrower; , unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with its organizational documentsthe Transaction Documents.
(bl) The Borrower It shall not (i) engage, directly or indirectly, in insure that any business, other than consolidated financial statements of TPVG have notes to the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of effect that the Borrower except is a separate entity whose creditors have a claim on commercially reasonable terms similar its assets prior to those assets becoming available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsits equity holders.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 2 contracts
Samples: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
Separate Existence. (a) The Borrower shall at all times: Depositor shall, except as otherwise provided herein or in a Transaction Document:
(i) maintain at least one Independent Manager; Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the Depositor Loan Trust Agreement, the Trust Agreement, the Loan Purchase Agreement, the other Transaction Documents to which it is a party and each other instrument or agreement necessary or appropriate to proper administration hereof or thereof and to permit and effectuate the transactions contemplated hereby or thereby;
(ii) maintain Maintain its own separate books and records and bank accounts; accounts separate from those of any Affiliate of the Depositor;
(iii) At all times hold itself out to the public and all other Persons as a separate legal and economic entity separate apart from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; ;
(viiiiv) maintain Have a board of managers separate financial statements; provided, however, from that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; ;
(xvv) correct Not incur, create or assume any indebtedness or other liabilities or obligations other than as expressly permitted under the Transaction Documents;
(vi) Correct any known misunderstanding regarding its separate identity; identity and refrain from engaging in any activity that compromises the separate legal identity of the Depositor;
(xvivii) maintain Maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposepurposes, transactions and liabilities and in order to pay its operating expenses and liabilities from its own assets; debts as such debts become due;
(xviiviii) cause Cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; ;
(xviiiix) not Not acquire the any obligations or securities of any Affiliate of the Depositor other than any securities of the Issuer as permitted by the Transaction Documents;
(x) File its Affiliates; (xix) cause the managersown tax returns, officersif any, agents and other representatives of the Borrower to act at all times with respect as may be required under applicable law, to the Borrower consistently extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(xi) Except as contemplated by the Transaction Documents, not commingle its assets with assets of any other Person;
(xii) Conduct its business in furtherance of the foregoing and in the best interests of the Borrower; and its own name;
(xxxiii) maintain at least one special memberMaintain separate financial statements, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower prepared in accordance with applicable generally accepted accounting principles, showing its organizational documents.
(b) The Borrower shall assets and liabilities separate and apart from those of any other Person and not (i) engage, directly or indirectly, in have its assets listed on any business, financial statement of any other Person other than as a consequence of the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless application of consolidation rules in accordance with the Transaction Documents; generally accepted accounting principles;
(ivxiv) except for capital contributions or capital distributions permitted under the terms Pay its own liabilities and conditions expenses only out of this Agreement its own funds;
(xv) Maintain an arm’s length relationship with unaffiliated parties, and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower Depositor except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-arm’s length transaction; ;
(vxvi) identify itself Pay the salaries of its own employees, if any, only out of its own funds;
(xvii) Not hold out its credit or assets as a department or division being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person nor make any intercompany loans to any Affiliate of the Depositor or accept any intercompany loans from any Affiliate of the Depositor except as permitted by the Transaction Documents;
(xviii) Clearly identify its offices, if any, as its offices and, to the extent that the Depositor and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with such Affiliates, including services performed by an employee of such Affiliates;
(xix) Ensure that it shall at all times have at least one Independent Manager and at least one officer;
(xx) Use separate stationery, invoices and checks bearing its own name; Not guarantee any obligation of any Affiliate;
(xxi) Not engage, directly or indirectly, in any business other than that required or permitted to be performed under the Depositor LLC Agreement, the Transaction Documents or this Section 2.07(f);
(xxii) Not allow any borrowings or granting of a security interest or other transfer of assets between the Depositor and any other Person unless such action is permitted under the Transaction Documents and there is a business purpose for the Depositor and the borrowing or granting of a security interest in or other transfer of assets was not and will not be intended to impair the rights or interests of creditors and was made in exchange for reasonably equivalent value and fair consideration and has been and will be appropriately documented and recorded in its records;
(xxiii) Will not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person; , except that the Depositor may invest in those investments permitted under the Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Transaction Documents and permit the same to remain outstanding in accordance with such provisions;
(vixxiv) Not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any asset or property equity interest in any other than entity except as expressly permitted under the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.Transaction Documents; or
(cxxv) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary Not, to the “Assumptions and Facts” section fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or other transfer of any of its assets outside the opinion ordinary course of Dechert LLP, dated the date hereof, relating to certain nonconsolidation mattersCompany’s business.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (OneMain Financial Holdings, Inc.), Sale and Servicing Agreement (OneMain Financial Holdings, Inc.)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain conduct its business solely in its own separate books name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity books of account separate from those of TPVG and any other Person; Affiliate thereof.
(ivc) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have a board of managers separate from that its assets listed on any financial statement of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, however that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if TPVG provided that (Ai) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate TPVG or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet sheet.
(if g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower prepares its own separate balance sheet); underlying the transactions described in the Transaction Documents as official records of the Borrower.
(ixh) pay its own liabilities only out of its own funds; (x) It shall maintain an arm’s arm’s-length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVG have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than TPVG to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability borrower under the laws of the State of Delaware.
(q) It shall allocate and each charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of its other Affiliates; (xi) not expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others; .
(xiis) allocate fairly and reasonably any overhead expenses that are shared with It shall not act as an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations agent of any other Person; Person in any capacity.
(xvt) It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity; identity from TPVG or any other Person.
(xviv) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain adequate capital a sufficient number of employees in light of its contemplated business purposeoperations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit TPVG or any other Person to (i) advance or contribute property to it by way of capital contribution, transactions and liabilities and pay its operating expenses and liabilities from its own assets; or (xviiii) cause its board to be made, any transfer or distribution of managers to meet at least annually or act the Borrower’s assets, except, in each case, as may be made pursuant to written consent the Transaction Documents or other duly authorized and keep minutes legal actions of such meetings TPVG and actions the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and observe in otherwise each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder.
(cc) It will at all respects all other Delaware times comply with the provisions of its limited liability company formalities; agreement.
(xviiidd) It will at all times be a limited liability company formed under Delaware which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not acquire (A) amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the obligations prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith or (B) divide or permit any securities division of its Affiliates; itself.
(xixff) It shall cause the managersagents, officers, agents officers and other representatives of the Borrower Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests provisions of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documentsthis Section 10.5.
(bgg) The Borrower It shall at all times hold itself out to the public and all other Persons as a legal entity separate from TPVG and from any other Person.
(hh) It shall not (i) engage, directly or indirectly, in commingle its assets with assets of any business, other than the actions required or permitted to be performed under the preceding clause (a); Person.
(ii) fail to be solvent; (iii) releaseIt shall, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(cjj) The Borrower It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however that the foregoing shall not (require TPVG to make additional capital contributions to the Borrower. It will insure that it and shall TPVG do not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain nonconsolidation non-consolidation matters.
Appears in 2 contracts
Samples: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
Separate Existence. (a) The Borrower Such Loan Party shall at all times: (i) maintain at least one Independent Manager; (ii) maintain conduct its business solely in its own separate books name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of such Loan Party are available to pay the creditors of any of its equityholders or any Affiliate thereof (it being understood that the assets of the Securitization Subsidiaries shall be pledged to secure the obligations of the Borrower).
(b) It shall maintain records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity books of account separate from any other Person; (iv) have a board of managers separate from that those of any other Person; (v) file its own Tax returns, except to the extent that such Loan Party’s financial and operating results are consolidated with those of the Equityholder in consolidated financial statements or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party.
(c) It shall pay its own operating expenses and liabilities from its own funds (other than in connection with administrative and other expenses owed by Securitization Subsidiaries, which may be paid by the Borrower); provided that, the Servicer may from time to time advance expenses of the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Servicer is later reimbursed pursuant to the priority of payments set forth in Article VIII.
(d) It shall ensure that the annual financial statements of the Borrower has established proper reserves on its books and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP; .
(vie) It shall not commingle its assets with assets hold itself out as being liable for the debts of any other Person; (vii) conduct . It shall not pledge its business in its own name and strictly comply with all organizational formalities assets to maintain its separate existence; (viii) maintain separate financial statements; providedsecure the obligations of any other Person. It shall not guarantee any obligation of any Person, however, that the Borrower’s assets may be included in a consolidated financial statement of its including any Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy or become obligated for the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not or hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for pay the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Golub Capital Direct Lending Corp), Loan Financing and Servicing Agreement (Golub Capital BDC 4, Inc.)
Separate Existence. (a) The Such Loan Party shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of such Loan Party are available to pay the creditors of any of its equityholders or any Affiliate thereof (it being understood that the assets of the Securitization Subsidiaries shall be pledged to secure the obligations of the Borrower).
(b) It shall maintain records and books of account separate from those of any other Person, except to the extent that such Loan Party’s financial and operating results are consolidated with those of the Equityholder in consolidated financial statements or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party.
(c) It shall pay its own operating expenses and liabilities from its own funds (other than in connection with administrative and other expenses owed by Securitization Subsidiaries, which may be paid by the Borrower).
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person (other than any Securitization Subsidiary).
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and, other than in connection with entering into the Transaction Documents, with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if (A) the Equityholder or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party so long as appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerand as otherwise permitted pursuant to Section 9.34, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (it being understood that this covenant shall apply to the Borrower and the Securitization Subsidiaries on a combined basis); provided, however, that the foregoing shall not require the Equityholder to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person (other than the Securitization Subsidiaries), except that it may invest in those investments permitted under the Transaction Documents.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than the Securitization Subsidiaries, and other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents, it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity (other than any Securitization Subsidiaries).
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit any Loan Party to take any Material Action without the prior unanimous written consent of the Independent Member. The Constituent Documents of such Loan Party shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Member; provided that upon the death or incapacitation of the Independent Member, the Borrower shall replace such Independent Member with a new Independent Member within ten (10) Business Days of such death or incapacitation; (b) such Loan Party shall not, without the prior written consent of the Independent Member, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Member shall consider only the interests of such Loan Party, including its creditors; and (c) no Independent Member of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Member, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Member, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Member. No resignation or removal of an Independent Member shall be effective until a successor Independent Member is appointed and has accepted his or her appointment. No Independent Member may be removed other than for Cause.
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.), Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other PersonPerson[reserved]; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the USActive 31637433.4 -104- Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant tomember or members to keep minutes of all meetings and actions by written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the BorrowerBorrower (except as otherwise permitted under the Transaction Documents); (xix) [reserved]; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to (i) maintain at least one Independent Manager; Excluded Amounts and (ii) each Agent Account, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its own separate books assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and records and bank accounts; with the prior written consent of the Facility Agent (iiiwhich consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert Eversheds Xxxxxxxxxx (US) LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) the Independent Manager of the Borrower may not be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of the Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for the Independent Manager. No resignation or removal of the Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. The Independent Manager may not be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Separate Existence. (a) The Borrower and the General Partner shall at all times: each (i) maintain at least one Independent Managertheir books and records and bank accounts separate from any other person or entity (except that, for accounting and reporting purposes, the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to require consolidation under GAAP, the Borrower) may be included in the consolidated financial statements of Host Marriott in accordance with generally accepted accounting principles); (ii) maintain its own separate books an arm's length relationship with their partners, Affiliates and records and bank accountsany other party furnishing services to either of them; (iii) hold itself out to the public maintain its books, records, resolutions and all other Persons agreements as a legal entity separate from any other Personofficial records; (iv) have conduct their business in their own name and through their own authorized officers and agents (except that all of the Properties are operated and are expected to continue to be operated under the name "Courtyard by Marriott," which is a board trademark of managers separate from that of any other PersonMII); (v) file its own Tax returnsprepare and maintain their financial statements, accounting records and other corporation or partnership documents separate from those of any other Person (except to for inclusion of the extent that General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes require consolidation under Applicable LawGAAP, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested the Borrower) in good faith by appropriate proceedings and in respect consolidated financial statements of which the Borrower has established proper reserves on its books in accordance with GAAPHost Marriott); (vi) not commingle its assets with assets pay their own liabilities out of any their own funds and other Personassets; (vii) conduct observe all partnership or corporate formalities, as applicable, necessary to maintain their identities as entities separate and distinct from one another and from Host Marriott and all other Affiliates; (viii) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (ix) use its business own stationery, invoices and checks (except when acting in a representative capacity); (x) hold and identify itself as a separate and distinct entity under its own name and strictly comply with all organizational formalities not as a division or part of any other Person (except for inclusion of the General Partner (and, if Host Marriott should acquire a sufficient direct or indirect ownership interest in the Borrower to maintain its separate existence; (viii) maintain separate financial statements; providedrequire consolidation under GAAP, however, that the Borrower’s assets may be included ) in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheetHost Marriott); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documentsname.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Agreement (Courtyard by Marriott Limited Partnership)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAPAppropriate Accounting Principles; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner Collateral and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert Weil, Gotshal & Xxxxxx LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Separate Existence. (a) The Such Loan Party shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of such Loan Party are available to pay the creditors of any of its equityholders or any Affiliate thereof (it being understood that the assets of the Securitization Subsidiaries shall be pledged to secure the obligations of the Borrower).
(b) It shall maintain records and books of account separate from those of any other Person, except to the extent that such Loan Party’s financial and operating results are consolidated with those of the Equityholder in consolidated financial statements or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party.
(c) It shall pay its own operating expenses and liabilities from its own funds (other than in connection with administrative and other expenses owed by Securitization Subsidiaries, which may be paid by the Borrower).
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person (other than any Securitization Subsidiary).
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if (A) the Equityholder or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party so long as appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerand as otherwise permitted pursuant to Section 9.34, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (it being understood that this covenant shall apply to the Borrower and the Securitization Subsidiaries on a combined basis); provided, however, that the foregoing shall not require the Equityholder to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person (other than the Securitization Subsidiaries), except that it may invest in those investments permitted under the Transaction Documents.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than the Securitization Subsidiaries, and other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents, it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity (other than any Securitization Subsidiaries).
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit any Loan Party to take any Material Action without the prior unanimous written consent of the Independent Member. The Constituent Documents of such Loan Party shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Member; provided that upon the death or incapacitation of the Independent Member, the Borrower shall replace such Independent Member with a new Independent Member within ten (10) Business Days of such death or incapacitation; (b) such Loan Party shall not, without the prior written consent of the Independent Member, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Member shall consider only the interests of such Loan Party, including its creditors; and (c) no Independent Member of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Member, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Member, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Member. No resignation or removal of an Independent Member shall be effective until a successor Independent Member is appointed and has accepted his or her appointment. No Independent Member may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (GOLUB CAPITAL INVESTMENT Corp)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purposeits
(e) The Borrower shall notify the Facility Agent, transactions each Agent and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes the Collateral Agent within five Business Days after a Responsible Officer of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire Person shall obtain knowledge that the obligations senior unsecured debt rating of a Hedge Counterparty has been withdrawn or reduced by any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documentsRating Agency.
(bf) The Borrower may at any time obtain a Replacement Hedging Agreement with the consent (in its sole discretion) of the Facility Agent.
(g) The Borrower shall not agree to any amendment to any Hedging Agreement without the consent (iin its sole discretion) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsFacility Agent.
(ch) The Borrower shall notify the Facility Agent, each Agent and the Collateral Agent after a Responsible Officer of the Borrower shall obtain actual knowledge of the transfer by the related Hedge Counterparty of any Hedging Agreement, or any interest or obligation thereunder.
(i) The Borrower, with the consent of the Facility Agent in its sole discretion, may sell all or a portion of the Hedging Agreements; provided, that no consent of the Facility Agent shall be required for the sale of all or a portion of any Hedging Agreement relating to Fixed Rate Collateral Obligations not counted as “excess” pursuant to clause (d) of the definition of “Excess Concentration Amount.” The Borrower shall have the duty of obtaining a fair market value price for the sale of any Hedging Agreement, notifying the Facility Agent, each Agent and shall not permit the Equityholder to) take Collateral Agent of prospective purchasers and bids, and selecting the purchaser of such Hedging Agreement. The Borrower and, at the Borrower’s request, the Collateral Agent, upon receipt of the purchase price in the Collection Account shall, with the prior written consent of the Facility Agent, execute all documentation necessary to release the Lien of the Collateral Agent on such Hedging Agreement and proceeds thereof. Notwithstanding the foregoing, with respect to any action contrary Collateral Obligation, the Borrower may include in an Asset Approval Request provisions of Hedging Agreements applicable to such Collateral Obligation, and, if nothing to the “Assumptions and Facts” section contrary is included in the opinion of Dechert LLPrelated Asset Approval NoticeRequest delivered to the Borrower by the Facility Agent, dated the date hereof, provisions relating to certain nonconsolidation mattersHedging Agreements in the Asset Approval Request shall control to the extent such provisions conflict with this Section 10.6. Notwithstanding anything to the contrary in this Section 10.6, the parties hereto agree that should the Borrower fail to observe or perform any of its obligations under this Section 10.6 with respect to any Hedging Agreement, the sole result will be that the Collateral Obligation or Collateral Obligations that are the subject of such Hedging Agreement shall immediately cease to be Eligible Collateral Obligations for all purposes under this Agreement.
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and strictly comply with all organizational formalities shall use its best efforts to maintain its separate existence; (viii) maintain separate financial statements; provided, however, avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy pay the debts and other obligations creditors of such Affiliate UACC or any Affiliate thereof (other Person than as expressly provided herein).
(b) It shall maintain corporate records and books of account separate from those of UACC and any other Affiliate thereof.
(Bc) It shall obtain proper authorization for all corporate action requiring such assets authorization.
(d) It shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; funds.
(xviie) cause its board It will insure that the annual financial statements of managers to meet at least annually or act pursuant to written consent and keep minutes UACC shall disclose the effects of such meetings and actions and observe the transactions contemplated hereby in all respects all other Delaware limited liability company formalities; accordance with GAAP.
(xviiif) not acquire the obligations or any securities of its Affiliates; (xix) cause the managersThe resolutions, officers, agents agreements and other representatives instruments of the Borrower to act at all times with respect to underlying the transactions described in the Transaction Documents shall be continuously maintained by the Borrower consistently and in furtherance of the foregoing and in the best interests as official records of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bg) The Borrower It shall maintain an arm’s-length relationship with UACC and its other Affiliates, and shall not hold itself out as being liable for the debts of UACC or any of its other Affiliates.
(h) It shall keep its assets and liabilities separate from those of all other entities other than as permitted by the Transaction Documents.
(i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the The books and records of the BorrowerBorrower shall be maintained at the address designated herein for receipt of notices, enter into any transaction with an Affiliate of unless the Borrower except on commercially reasonable terms similar to those available to unaffiliated shall otherwise advise the parties hereto in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetswriting.
(cj) The Borrower It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except as otherwise permitted by the Transaction Documents.
(and k) It shall insure that any consolidated financial statements of UACC have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(l) It shall not permit amend, supplement or otherwise modify (i) its organization documents, except in accordance therewith and with the Equityholder toprior written consent of the Required Lenders (which consent shall not be unreasonably withheld) take any action contrary to the “Assumptions and Facts” section or (ii) its bylaws except in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation mattersaccordance therewith.
Appears in 1 contract
Samples: Receivables Financing Agreement (United Pan Am Financial Corp)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and strictly comply with all organizational formalities shall use commercially reasonable efforts to maintain its separate existence; (viii) maintain separate financial statements; provided, however, avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy pay the debts and other obligations creditors of such Affiliate CCRT, CAR or any Affiliate thereof (other Person than as expressly provided herein). It shall maintain corporate records and (B) books of account separate from those of CCRT, CAR and any other Affiliate thereof. It shall obtain proper authorization for all corporate action requiring such assets authorization. Other than organizational expenses and as expressly provided herein or in the other Transaction Documents, it shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board funds. It will insure that the annual financial statements of managers to meet at least annually or act pursuant to written consent CCRT and keep minutes the financial statements of such meetings and actions and observe CAR shall disclose the effects of the transactions contemplated hereby in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managersaccordance with GAAP. The resolutions, officers, agents agreements and other representatives instruments of the Borrower to act at all times with respect to underlying the transactions described in the Transaction Documents shall be continuously maintained by the Borrower consistently and in furtherance of the foregoing and in the best interests as official records of the Borrower; . It shall maintain an arm’s-length relationship with CCRT and (xx) maintain at least one special memberCAR and its other Affiliates, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower and shall not (i) engage, directly hold itself out as being liable for the debts of CCRT and CAR or indirectly, in any business, of their respective Affiliates. It shall keep its assets and liabilities separate from those of all other entities other than the actions required or as permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with by the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the . The books and records of the BorrowerBorrower shall be maintained at the address designated herein for receipt of notices, enter unless the Borrower shall otherwise advise the parties hereto in writing. It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any transaction with an Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except as otherwise permitted by the Transaction Documents. It shall insure that any consolidated financial statements of CCRT and the financial statements of CAR have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders. It shall not amend, supplement or otherwise modify (i) its articles of incorporation in any respect that affects its limited purpose or its separateness covenants without the prior written consent of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; Required Lenders (vwhich consent shall not be unreasonably withheld) identify itself as a department or division of any other Person; or (viii) own its bylaws in any asset manner that is inconsistent therewith or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation with its articles of these assetsincorporation.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) maintain It shall not amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned).
(j) It shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Services Provider nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
(cc) It shall not divide or permit any division of the Borrower.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) maintain It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Services Provider nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
(cc) It shall not divide or permit any division of the Borrower.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Separate Existence. (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVG or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of TPVG and any other Affiliate thereof. It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(c) It shall obtain proper authorization for all times: action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It shall ensure that the annual financial statements of TPVG shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It will not incur, create or assume any indebtedness or liabilities except as expressly permitted hereunder. It shall not assume, pay or guarantee any obligation of any Person, including any Affiliate, or advance funds to any other Person for the payment of expenses or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person. It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(g) It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(h) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(i) maintain at least one Independent Manager; To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(j) It shall not (A) amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) maintain its own separate books and records and bank accounts; limited liability company agreement except in accordance therewith or (iiiB) divide or permit any division of itself.
(k) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates (including TPVG) and from any other Person; . It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(ivl) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(m) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence. It shall at all times comply with the provisions of its limited liability company agreement.
(n) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, provided that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if TPVG provided that (Ai) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate TPVG and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate TPVG or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bo) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; . It shall not permit TPVG or any other Person to (vi) advance or contribute property to it by way of capital contribution, or (ii) cause to be made, any transfer or distribution of the Borrower’s assets, except, in each case, as may be made pursuant to the Transaction Documents or other duly authorized and legal actions of TPVG and the Borrower.
(p) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds. It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain a sufficient number of employees in light of its contemplated business operations.
(q) It shall use separate invoices bearing its own name.
(r) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of TPVG or any other Person.
(s) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require TPVG to make additional capital contributions to the Borrower.
(t) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(viu) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents.
(v) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(w) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(x) Except as expressly permitted by the Transaction Documents, it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(y) It shall not own any asset or property other than each Contract, the Collateral, any REO Asset Owner and the related assets Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of these assetsthe foregoing and such other financial assets as permitted by the Transaction Documents.
(cz) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(aa) It shall allocate fairly and reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(bb) It shall continuously maintain the resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents as official records of the Borrower.
(cc) It shall maintain an arm’s length relationship with TPVG and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVG or any of its Affiliates.
(dd) It shall not become involved in the day-to-day management of any other Person. It shall not permit any Person other than TPVG to become involved in the Equityholder day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(ee) It shall not act as an agent of any other Person in any capacity. It shall not act as agent of TPVG or any other Person nor permit TPVG or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(ff) It shall cause the agents, officers and other representatives of the Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
(gg) Neither the Borrower nor TPVG shall take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert Xxxxxxxx Xxxxxxx, LLP, dated the date hereof, relating to certain nonconsolidation non-consolidation matters.
(hh) Neither the Collateral Manager nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of two Independent Members. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least two Independent Members; (b) the Borrower shall not, without the prior written consent of both Independent Members, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Members shall consider only the interests of the Borrower, including its creditors; and (d) no Independent Member of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Member, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Member, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Member. No resignation or removal of an Independent Member shall be effective until a successor Independent Member is appointed and has accepted his or her appointment. No Independent Member may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (TriplePoint Venture Growth BDC Corp.)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person[reserved]; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAPAppropriate Accounting Principles; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually member or act pursuant to written consent and members keep minutes of such all meetings and actions by written consent and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its AffiliatesAffiliates except as otherwise permitted under the Transaction Documents; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower[reserved]; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents; and (xxi) it shall not divide or permit any division of the Borrower under Applicable Law.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a)) or otherwise pursuant to the Transaction Documents; (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner Collateral and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Separate Existence. The Seller shall be operated in such a manner that the separate corporate existence of the Seller and the Motor Coach Entities would not be disregarded in the event of a bankruptcy or insolvency of the Seller or any Motor Coach Entity, and, without limiting the foregoing:
(ai) The Borrower the Seller shall at all times: (i) maintain at least one Independent Manager; times be a limited purpose corporation whose activities are restricted as set forth in its certificate or articles of incorporation;
(ii) no Motor Coach Entity shall be involved in the day-to-day management of the Seller (except to the extent expressly contemplated by this Agreement or any other Related Document);
(iii) other than the sale of Receivables or Leased Vehicles pursuant to this Agreement and other actions permitted under this Agreement, the Seller shall not engage in any intercorporate transactions with any other Motor Coach Entity;
(iv) the Seller shall maintain its own separate corporate records and books of account from each Motor Coach Entity, hold regular corporate meetings and otherwise observe corporate formalities and have separate office space from each Motor Coach Entity, if any;
(v) the financial statements and books and records of Motor Coach and bank accounts; any other entity whose financial statements are consolidates with the Seller prepared after the Initial Closing Date shall reflect the separate corporate existence of the Seller;
(iiivi) the Seller shall not act as agent for any Motor Coach Entity and shall hold itself out to the public and all other Persons as a legal entity corporation separate from any other Person; each such Motor Coach Entity;
(ivvii) have a board of managers separate the Seller shall maintain its assets separately from that the assets of any other Person; Motor Coach Entity (v) file its own Tax returns, including through the maintenance of separate bank accounts and except for any Records to the extent that necessary for the Borrower is treated as a “disregarded entity” for Tax purposes servicing of the Receivables); the Seller's funds and is not required to file Taxes under Applicable Lawassets, and pay records relating thereto, shall not be commingled with those of any Taxes so required Motor Coach Entity; and the separate creditors of the Seller will be entitled to be paid under Applicable Law, except for those Taxes being contested satisfied out of the Seller's assets prior to any value in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities Seller becoming available to maintain its separate existence; the Seller's equity holders;
(viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by contemplated under this Agreement, not pledge its assets as security for Agreement and the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions Related Documents and liabilities those associated with the creation and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives organization of the Borrower to act at all times with respect to Seller and the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions preparation of this Agreement and properly reflected on the books and records Related Documents, no Motor Coach Entity shall (A) pay the Seller's expenses; (B) guarantee the Seller's obligations, or (C) advance funds to the Seller for the payment of expenses or otherwise; and
(ix) all business correspondence of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any Seller and other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower communications shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section be conducted in the opinion of Dechert LLPSeller's own name, dated the date hereof, relating to certain nonconsolidation matterson its own stationery and through a separately-listed telephone number.
Appears in 1 contract
Samples: Receivables Sale Agreement (Motor Coach Industries International Inc)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) maintain It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so federal and other material taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions Facts and FactsAssumptions” section in the opinion or opinions of Dechert Xxxxxx & Xxxxxxx LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of one Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Managers; (b) the Borrower shall not, without the prior written consent of one Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (c) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the Constituent Documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Separate Existence. (a) The Borrower shall at all times: Depositor shall, except as otherwise provided herein or in a Transaction Document:
(i) maintain at least one Independent Manager; Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the Depositor Loan Trust Agreement, the Trust Agreement, the Loan Purchase Agreement, the other Transaction Documents to which it is a party and each other instrument or agreement necessary or appropriate to proper administration hereof or thereof and to permit and effectuate the transactions contemplated hereby or thereby;
(ii) maintain Maintain its own separate books and records and bank accounts; accounts separate from those of any Affiliate of the Depositor;
(iii) At all times hold itself out to the public and all other Persons as a separate legal and economic entity separate apart from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; ;
(viiiiv) maintain Have a board of managers separate financial statements; provided, however, from that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; ;
(xvv) correct Not incur, create or assume any indebtedness or other liabilities or obligations other than as expressly permitted under the Transaction Documents;
(vi) Correct any known misunderstanding regarding its separate identity; identity and refrain from engaging in any activity that compromises the separate legal identity of the Depositor;
(xvivii) maintain Maintain adequate capital and a sufficient number of employees, if any employees are so needed, in light of its contemplated business purposepurposes, transactions and liabilities and in order to pay its operating expenses and liabilities from its own assets; debts as such debts become due;
(xviiviii) cause Cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; ;
(xviiiix) not Not acquire the any obligations or securities of any Affiliate of the Depositor other than any securities of the Issuer as permitted by the Transaction Documents;
(x) File its Affiliates; (xix) cause the managersown tax returns, officersif any, agents and other representatives of the Borrower to act at all times with respect as may be required under applicable law, to the Borrower consistently extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(xi) Except as contemplated by the Transaction Documents, not commingle its assets with assets of any other Person;
(xii) Conduct its business in furtherance of the foregoing and in the best interests of the Borrower; and its own name;
(xxxiii) maintain at least one special memberMaintain separate financial statements, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower prepared in accordance with applicable generally accepted accounting principles, showing its organizational documents.
(b) The Borrower shall assets and liabilities separate and apart from those of any other Person and not (i) engage, directly or indirectly, in have its assets listed on any business, financial statement of any other Person other than as a consequence of the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless application of consolidation rules in accordance with the Transaction Documents; generally accepted accounting principles;
(ivxiv) except for capital contributions or capital distributions permitted under the terms Pay its own liabilities and conditions expenses only out of this Agreement its own funds;
(xv) Maintain an arm’s length relationship with unaffiliated parties, and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower Depositor except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-arm’s length transaction; funds;
(vxvi) identify itself Pay the salaries of its own employees, if any, only out of its own
(xvii) Not hold out its credit or assets as a department or division being available to satisfy the obligations of any other Person nor pledge its assets for the benefit of any other Person nor make any intercompany loans to any Affiliate of the Depositor or accept any intercompany loans from any Affiliate of the Depositor except as permitted by the Transaction Documents;
(xviii) Clearly identify its offices, if any, as its offices and, to the extent that the Depositor and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with such Affiliates, including services performed by an employee of such Affiliates;
(xix) Ensure that it shall at all times have at least one Independent Manager and at least one officer;
(xx) Use separate stationery, invoices and checks bearing its own name; Not guarantee any obligation of any Affiliate;
(xxi) Not engage, directly or indirectly, in any business other than that required or permitted to be performed under the Depositor LLC Agreement, the Transaction Documents or this Section 2.07(f);
(xxii) Not allow any borrowings or granting of a security interest or other transfer of assets between the Depositor and any other Person unless such action is permitted under the Transaction Documents and there is a business purpose for the Depositor and the borrowing or granting of a security interest in or other transfer of assets was not and will not be intended to impair the rights or interests of creditors and was made in exchange for reasonably equivalent value and fair consideration and has been and will be appropriately documented and recorded in its records;
(xxiii) Will not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person; , except that the Depositor may invest in those investments permitted under the Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Transaction Documents and permit the same to remain outstanding in accordance with such provisions;
(vixxiv) Not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any asset or property equity interest in any other than entity except as expressly permitted under the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.Transaction Documents; or
(cxxv) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary Not, to the “Assumptions and Facts” section fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or other transfer of any of its assets outside the opinion ordinary course of Dechert LLP, dated the date hereof, relating to certain nonconsolidation mattersCompany’s business.
Appears in 1 contract
Samples: Sale and Servicing Agreement (OneMain Financial Holdings, Inc.)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(e) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(f) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(g) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(h) It shall not (A) amend, supplement or otherwise modify its organizational documents (as defined therein), except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(i) maintain It shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its member and from any other Person; Person (ivother than, if applicable, for U.S. federal income tax purposes).
(j) have a board of managers It shall file its own Tax returns separate from that those of any other Person; (v) , if and to the extent required to file its own Tax returnstax returns under Applicable Law, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes Tax returns under Applicable Law. -106- USActive 49316845.1249316845.13 such equity interests; provided that so long as (x) no Event of Default or Unmatured Event of Default shall have occurred and be continuing, (y) the Waiver Period shall have ended and pay any Taxes so required (z) the Portfolio LTV is equal to be paid under Applicable Lawor less than 65.0%, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets may make a distribution of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made amounts paid to it pursuant to Section 8.3(a) on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person applicable Distribution Date and (B) such assets shall also be listed the proceeds of any Advance on the Borrower’s own separate balance sheet (applicable Advance Date, but only if such Advance is made in respect of an Eligible Collateral Obligation acquired by such Borrower on such Advance Date and none of the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with proceeds from such Advance are needed to settle the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes acquisition of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documentsEligible Collateral Obligation.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that any annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) maintain It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) Without limiting any of the foregoing covenants in this Section 10.5, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle any financial statements that it prepares will show its assets with assets and liabilities separate and apart from those of any other Person; (vii) conduct and it shall not have its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate assets listed on any financial statementsstatement of any other Person; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert Freshfields Bruckhaus Xxxxxxxx US LLP, dated the date hereof, relating to certain nonconsolidation nonconsolidation, true sale and true participation matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of at least one Independent Director. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Director; (b) the Borrower shall not, without the prior written consent of each Independent Director, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, each Independent Director shall consider only the interests of the Borrower, including its creditors; and (d) no Independent Director of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Director, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Director. No resignation or removal of an Independent Director shall be effective until a successor Independent Director is appointed and has accepted his or her appointment. No Independent Director may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Silver Point Specialty Lending Fund)
Separate Existence. The Transferor shall at all times (a) The Borrower shall to the extent the Transferor's office is located in the offices of the Seller or any Affiliate of the Seller, pay fair market rent for its executive office space located in the offices of the Seller or any Affiliate of the Seller, (b) have at all times: times at least two members of its board of directors which are not and have never been employees, officers or directors of the Seller or any Affiliate of the Seller or of any creditor of the Seller or any Affiliate of the Seller and are persons who are familiar and have experience with asset securitization, (c) maintain the Transferor's books, financial statements, accounting records and other corporate documents and records separate from those of the Seller or any other entity and maintain separate accounts, (d) not commingle the Transferor's assets with those of the Seller or any other entity, (e) act solely in its corporate name and through its own authorized officers and agents, (f) make investments directly or by brokers engaged and paid by the Transferor or its agents (provided that if any such agent is an Affiliate of the Transferor it shall be compensated at a fair market rate for its services), (g) separately manage the Transferor's liabilities from those of the Seller or any Affiliates of the Seller and pay its own liabilities, including all administrative expenses, from its own separate assets, except that the Seller may pay the organizational expenses of the Transferor, (h) pay from the Transferor's assets all obligations and indebtedness of any kind incurred by the Transferor, and (i) maintain at least one Independent Manager; take no actions which may mislead third parties as to the separate corporate identities and separate assets and liabilities of the Seller, the Initial Purchaser and the Transferor. The Transferor shall abide by all corporate formalities, including the maintenance of current minute books, and the Transferor shall cause its financial statements to be prepared in accordance with generally accepted accounting principles in a manner that indicates the separate existence of the Transferor and its assets and liabilities. The Transferor shall (i) pay all its liabilities, (ii) maintain its own separate books and records and bank accounts; not assume the liabilities of the Seller or any Affiliate of the Seller, (iii) hold itself out not lend funds or extend credit to the public Seller except pursuant to the Receivables Purchase Agreements in connection with the purchase of Receivables thereunder and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to not guarantee the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness liabilities of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate Seller or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives Affiliates of the Borrower to act at all times Seller. The officers and directors of the Transferor (as appropriate) shall make decisions with respect to the Borrower consistently business and in furtherance daily operations of the foregoing Transferor independent of and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) not dictated by any controlling entity. The Borrower Transferor shall not (i) engage, directly or indirectly, engage in any business, other than the actions required or business not permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions by its Certificate of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsIncorporation.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Metris Companies Inc)
Separate Existence. The Borrower shall take all reasonable steps (including, without limitation, all steps that the Agent may from time to time reasonably request) to maintain the Borrower's identity as a separate legal entity from MFN or any of its Affiliates and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of MFN and each other Affiliate thereof. Without limiting the generality of the foregoing, the Borrower shall:
(a) The conduct business correspondence in its own name, follow required limited liability company procedures and maintain appropriate books and records;
(b) except as set forth in the Borrower LLC Agreement, not permit any limitation on its authority to conduct its business and affairs in accordance with accepted limited liability company practice, and shall at not authorize or suffer any Person other than its directors and officers to act on its behalf with respect to matters (other than matters customarily delegated to others under powers of attorney) for which its representatives would customarily be responsible;
(c) subject to the terms of the Custodian Agreement, maintain or cause to be maintained by an agent of the Borrower under the Borrower's control physical possession of all times: its books and records;
(id) maintain at least one Independent Manager; capitalization adequate for the conduct of its business;
(iie) maintain account for and manage its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate liabilities separately from any other Person; (iv) have a board of managers separate from that those of any other Person; (v) file , including, without limitation, payment of all payroll and other administrative expenses and taxes from its own Tax returnsassets;
(f) maintain its assets separately from those of any other Person;
(g) maintain offices through which its business is conducted separate from those of MFN and any Affiliates of MFN (provided that, to the extent that MFN and any of its Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs and expenses among them, and each such entity shall bear its fair share of such expenses);
(h) not commingle its funds with those of MFN or any Affiliate of MFN or any Affiliates of the Borrower except to the extent that the Borrower is treated as a “disregarded entity” contemplated herein, or use its funds for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that than the Borrower’s assets may be included in a consolidated 's uses; and
(i) ensure that any financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness reports required of the Borrower from such Affiliate shall comply with GAAP and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or shall be issued separately from, but may be consolidated with, any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably reports prepared by any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Receivables Financing Agreement (MFN Financial Corp)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets, (vii) amend, supplement or otherwise modify its organizational documents, except in accordance therewith and, in the case of provisions relating to the special purpose of the Borrower and the replacement of the Independent Manager, with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (viii) divide or permit any division of itself.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Separate Existence. (a) i. The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and strictly comply with all organizational formalities shall use its best efforts to maintain its separate existence; (viii) maintain separate financial statements; provided, however, avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy pay the debts and other obligations creditors of such Affiliate Drive or any Affiliate thereof (other Person than as expressly provided herein).
ii. The Borrower shall maintain records and (B) books of account separate from those of Drive and any Affiliate thereof.
iii. The Borrower shall obtain proper authorization for all action requiring such assets authorization.
iv. The Borrower shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause funds.
v. The annual financial statements of Drive shall disclose the effects of the transactions contemplated hereby in accordance with generally accepted accounting principles.
vi. The resolutions, agreements and other instruments of the Borrower underlying the transactions described in the Transaction Documents shall be continuously maintained by the Borrower as official records of the Borrower.
vii. The Borrower shall maintain an arm's-length relationship with Drive and its board Affiliates, and shall not hold itself out as being liable for the debts of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations Drive or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) viii. The Borrower shall not (i) engage, directly or indirectly, in any business, keep its assets and liabilities separate from those of all other entities other than the actions required or as permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with by the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the .
ix. The books and records of the BorrowerBorrower shall be maintained at the address designated herein for receipt of notices, enter into any transaction with an Affiliate of unless the Borrower except on commercially reasonable terms similar to those available to unaffiliated shall otherwise advise the parties hereto in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetswriting.
(c) x. The Borrower shall not (and maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except as otherwise permitted by the Transaction Documents.
xi. The Borrower shall insure that any consolidated financial statements of Drive has notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
xii. The Borrower shall not permit amend, supplement or otherwise modify its partnership agreement, except in accordance therewith and with the Equityholder to) take any action contrary to prior written consent of the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation mattersAgent (which consent shall not be unreasonably withheld).
Appears in 1 contract
Samples: Receivables Financing Agreement (Firstcity Financial Corp)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain At all times since its own separate books formation, the Borrower has accurately maintained, and will continue to accurately maintain, in all material respects, its financial statements, accounting records and bank accounts; (iii) hold itself out to the public and all other Persons corporate documents, as a legal entity applicable, separate from those of the Services Provider and any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that if the Borrower’s assets may be included in a Borrower prepares consolidated financial statement of its Affiliate if statements with any Affiliates, (Ay) appropriate notation shall be made on any such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that shall contain a note indicating the Borrower’s separateness from any such Affiliates and indicate its assets and credit are not available to satisfy pay the debts and other obligations of such Affiliate or any other Person and (Bz) if the Borrower prepares its own separate balance sheet, such assets shall also be listed on the Borrower’s own separate balance sheet (if the sheet. The Borrower prepares has not at any time since its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder formation commingled, and each of its other Affiliates; (xi) will not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliatecommingle, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for with those of the obligations of Services Provider or any other Person; . The Borrower has at all times since its formation accurately maintained, in all material respects, and will continue to accurately maintain in all material respects, its own bank accounts and separate books of account.
(xvii) correct any known misunderstanding regarding The Borrower has at all times since its separate identity; (xvi) maintain adequate capital in light of formation paid, and will continue to pay, its contemplated business purpose, transactions and liabilities and pay its operating expenses and own liabilities from its own separate assets; .
(xviiiii) cause The Borrower has at all times since its board of managers formation identified itself, and will continue to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe identify itself, in all respects all dealings with the public, under its own name and as a separate and distinct entity, except as may be required for tax purposes. The Borrower has not at any time since its formation identified itself, and will not identify itself, as being a division or a part of any other Delaware limited liability company formalities; entity.
(xviiiiv) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the The Borrower to act will comply at all times with respect the provisions of its Constituent Documents relating to separateness, bankruptcy remoteness and any similar provisions in effect on the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documentsClosing Date without regard to subsequent amendments thereto.
(bv) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction provisions of its Constituent Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into will have at least one director that is an independent director complying with any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsapplicable rating agency criteria.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and Seller each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS Investment Corp II)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid USActive 58353885.2 the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to (i) maintain at least one Independent Manager; Excluded Amounts and (ii) each Agent Account, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its own separate books assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and records and bank accounts; with the prior written consent of the Facility Agent (iiiwhich consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any USActive 58353885.2 financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the CollateralTransaction Documents. -101- USActive 58353885.2
(y) It shall not engage, directly or indirectly, in any REO Asset Owner and business other than as required or permitted to be performed by the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cz) The It shall allocate fairly and reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower shall not (and shall not permit nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert Eversheds Sutherland (US) LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) the Independent Manager of the Borrower may not be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of the Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for the Independent Manager. No resignation or removal of the Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. The Independent Manager may not be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) maintain It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, provisional liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) It shall not permit file or consent to the filing of any petition, either voluntary or involuntary in relation to itself, or take advantage of any applicable insolvency, bankruptcy, liquidation, provisional liquidation, restructuring or reorganization statute or other insolvency laws or file or consent to the filing of a notice of dissolution or make an election to dissolve or terminate itself, or make or consent to an assignment for the benefit of itself or its creditors.
(bb) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(cc) Neither the Borrower nor the Equityholder shall take any action contrary to Schedule 2 (Assumptions) in the Cayman Islands legal opinions of Xxxxxx and Xxxxxx (Cayman) LLP, dated the date hereof, relating to certain nonconsolidation matters and true sale matters.
(dd) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the Independent Director. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Director; (b) the Borrower shall not, without the prior written consent of the Independent Director, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Director shall consider only the interests of the Borrower, including its creditors; and (c) the Independent Director of the Borrower may not be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of the Independent Director, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements set forth in the constitutional documents of the Borrower for the Independent Director. No resignation or removal of the Independent Director shall be effective until a successor Independent Director is appointed and has accepted his or her appointment. Without limiting sub-clause (c) above, the Independent Director may not be removed other than for Cause.
(ee) The Borrower will always maintain at least one (1) Special Share Trustee holding the Special Voting Share subject to the trust constituted by the Declaration of Trust, and the Borrower or its Affiliate shall pay the fees expenses and indemnities under the applicable engagement letter or equivalent document for such Special Share Trustee as and when they become due.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (BC Partners Lending Corp)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner Collateral and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLPWeil, Gotshal & Xxxxxx LLC, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(ba) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner Collateral and the related assets and incidental personal property necessary for the ownership or operation of these assets, (vii) amend, supplement or otherwise modify its organizational documents, except in accordance therewith and, in the case of provisions relating to the special purpose of the Borrower and the replacement of the Independent Manager, with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (viii) divide or permit any division of itself.
(cb) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain conduct its business solely in its own separate books name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVC or any Affiliate thereof.
(b) It shall maintain records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity books of account separate from those of TPVC and any other Person; Affiliate thereof.
(ivc) It shall obtain proper authorization for all action requiring such authorization.
(d) It shall pay its own operating expenses and liabilities from its own funds.
(e) It will insure that the annual financial statements of TPVC shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
(f) It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have a board of managers separate from that its assets listed on any financial statement of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if TPVC provided that (Ai) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate TPVC and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate TPVC or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet sheet.
(if g) It will continuously maintain the resolutions, agreements and other instruments of the Borrower prepares its own separate balance sheet); underlying the transactions described in the Transaction Documents as official records of the Borrower.
(ixh) pay its own liabilities only out of its own funds; (x) It shall maintain an arm’s arm’s-length relationship with TPVC and its Affiliates, and shall not hold itself out or its credit or assets as being liable for the debts and obligations of TPVC or any of its Affiliates.
(i) It shall keep its assets and liabilities separate from those of all other entities.
(j) It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
(k) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
(l) It shall insure that any consolidated financial statements of TPVC have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(m) It shall not become involved in the day-to-day management of any other Person.
(n) It shall not permit any Person other than the Equityholder to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
(o) It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
(p) It shall observe all formalities required of a limited liability company under the laws of the State of Maryland.
(q) It shall allocate and each charge fairly and reasonably any common employee or overhead shared with Affiliates.
(r) It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of its other Affiliates; (xi) not expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others; .
(xiis) allocate fairly and reasonably any overhead expenses that are shared with It shall not act as an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations agent of any other Person; Person in any capacity.
(xvt) It shall not act as agent of Equityholder or any other Person nor permit Equityholder or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
(u) It shall correct any known misunderstanding regarding its separate identity; identity from the Equityholder or any other Person.
(xviv) It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
(w) It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain adequate capital a sufficient number of employees in light of its contemplated business purposeoperations.
(x) It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
(y) It shall not permit the Equityholder or any other Person to (i) advance or contribute property to it by way of capital contribution, transactions and liabilities and pay its operating expenses and liabilities from its own assets; or (xviiii) cause its board to be made, any transfer or distribution of managers to meet at least annually or act the Borrower’s assets, except, in each case, as may be made pursuant to written consent the Transaction Documents or other duly authorized and keep minutes legal actions of such meetings the Equityholder and actions the Borrower.
(z) It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and observe in otherwise managing each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
(aa) It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
(bb) It will not incur, create or assume any Indebtedness except as expressly permitted hereunder.
(cc) It will at all respects all other Delaware times comply with the provisions of its limited liability company formalities; agreement.
(xviiidd) It will at all times be a limited liability company formed under the laws of the State of Maryland which has at least (i) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
(ee) It shall not acquire (A) amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the obligations prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith or (B) divide or permit any securities division of its Affiliates; itself.
(xixff) It shall cause the managersagents, officers, agents officers and other representatives of the Borrower Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests provisions of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documentsthis Section 10.5.
(bgg) The Borrower It shall at all times hold itself out to the public and all other Persons as a legal entity separate from the Equityholder and from any other Person.
(hh) It shall not (i) engage, directly or indirectly, in commingle its assets with assets of any business, other than the actions required or permitted to be performed under the preceding clause (a); Person.
(ii) fail to be solvent; (iii) releaseIt shall, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(cjj) The Borrower It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not (and shall not permit require the Equityholder to) to make additional capital contributions to the Borrower. It will insure that it and the Equityholder do not take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLPOtterbourg P.C., dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Receivables Financing Agreement (TriplePoint Private Venture Credit Inc.)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(e) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(f) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(g) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(h) It shall not (A) amend, supplement or otherwise modify its organizational documents (as defined therein), except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(i) maintain It shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its member and from any other Person; Person (ivother than, if applicable, for U.S. federal income tax purposes).
(j) have a board of managers It shall file its own Tax returns separate from that those of any other Person; (v) , if and to the extent required to file its own Tax returnstax returns under Applicable Law, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes Tax returns under Applicable Law. such equity interests; provided that so long as (x) no Event of Default or Unmatured Event of Default shall have occurred and be continuing, (y) the Waiver Period shall have ended and pay any Taxes so required (z) the Portfolio LTV is equal to be paid under Applicable Lawor less than 65.0%, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets may make a distribution of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made amounts paid to it pursuant to Section 8.3(a) on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person applicable Distribution Date and (B) such assets shall also be listed the proceeds of any Advance on the Borrower’s own separate balance sheet (applicable Advance Date, but only if such Advance is made in respect of an Eligible Collateral Obligation acquired by such Borrower on such Advance Date and none of the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with proceeds from such Advance are needed to settle the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes acquisition of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documentsEligible Collateral Obligation.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp)
Separate Existence. The Seller shall be operated in such a manner that the separate corporate existence of the Seller and the Motor Coach Entities would not be disregarded in the event of a bankruptcy or insolvency of the Seller or any Motor Coach Entity, and, without limiting the foregoing:
(ai) The Borrower the Seller shall at all times: (i) maintain at least one Independent Manager; times be a corporation whose activities are restricted as set forth in its certificate or articles of incorporation;
(ii) no Motor Coach Entity shall be involved in the day-to-day management of the Seller (except to the extent expressly contemplated by this Agreement or any other Related Document);
(iii) other than the sale of Receivables and Leased Vehicles pursuant to this Agreement and other actions permitted under this Agreement, the Seller shall not engage in any intercorporate transactions with any Motor Coach Entity;
(iv) the Seller shall maintain its own separate corporate records and books of account from each Motor Coach Entity, hold regular corporate meetings and otherwise observe corporate formalities and have separate office space from each Motor Coach Entity, if any;
(v) the financial statements and books and records of Motor Coach and bank accounts; any other entity whose financial statements are consolidates with the Seller prepared after the Initial Closing Date shall reflect the separate corporate existence of the Seller;
(iiivi) the Seller shall not act as agent for any Motor Coach Entity and shall hold itself out to the public and all other Persons as a legal entity corporation separate from any other Person; each such Motor Coach Entity;
(ivvii) have a board of managers separate the Seller shall maintain its assets separately from that the assets of any other Person; Motor Coach Entity (v) file its own Tax returns, including through the maintenance of separate bank accounts and except for any Records to the extent that necessary for the Borrower is treated as a “disregarded entity” for Tax purposes servicing of the Receivables); the Seller's funds and is not required to file Taxes under Applicable Lawassets, and pay records relating thereto, shall not be commingled with those of any Taxes so required Motor Coach Entity; and the separate creditors of the Seller will be entitled to be paid under Applicable Law, except for those Taxes being contested satisfied out of the Seller's assets prior to any value in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities Seller becoming available to maintain its separate existence; the Seller's equity holders;
(viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by contemplated under this Agreement, not pledge its assets as security for Agreement and the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions Related Documents and liabilities those associated with the creation and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives organization of the Borrower to act at all times with respect to Seller and the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions preparation of this Agreement and properly reflected on the books and records Related Documents, no Motor Coach Entity shall (A) pay the Seller's expenses; (B) guarantee the Seller's obligations, or (C) advance funds to the Seller for the payment of expenses or otherwise; and
(ix) all business correspondence of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any Seller and other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower communications shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section be conducted in the opinion of Dechert LLPSeller's own name, dated the date hereof, relating to certain nonconsolidation matterson its own stationery and through a separately-listed telephone number.
Appears in 1 contract
Samples: Receivables Sale Agreement (Motor Coach Industries International Inc)
Separate Existence. The Seller shall be operated in such a manner that the separate corporate existence of the Seller and the Motor Coach Entities would not be disregarded in the event of a bankruptcy or insolvency of the Seller or any Motor Coach Entity, and, without limiting the foregoing:
(ai) The Borrower the Seller shall at all times: (i) maintain at least one Independent Manager; times be a limited purpose corporation whose activities are restricted as set forth in its certificate or articles of incorporation;
(ii) no Motor Coach Entity shall be involved in the day-to-day management of the Seller (except to the extent expressly contemplated by this Agreement or any other Related Document);
(iii) other than the sale of Receivables and Leased Vehicles pursuant to this Agreement and other actions permitted under this Agreement, the Seller shall not engage in any intercorporate transactions with any other Motor Coach Entity.
(iv) the Seller shall maintain its own separate corporate records and books of account from each Motor Coach Entity, hold regular corporate meetings and otherwise observe corporate formalities and have separate office space from each Motor Coach Entity, if any;
(v) the financial statements and books and records of Motor Coach and bank accounts; any other entity whose financial statements are consolidates with the Seller prepared after the Initial Closing Date shall reflect the separate corporate existence of the Seller;
(iiivi) the Seller shall not act as agent for any Motor Coach Entity and shall hold itself out to the public and all other Persons as a legal entity corporation separate from any other Person; each such Motor Coach Entity;
(ivvii) have a board of managers separate the Seller shall maintain its assets separately from that the assets of any other Person; Motor Coach Entity (v) file its own Tax returns, including through the maintenance of separate bank accounts and except for any Records to the extent that necessary for the Borrower is treated as a “disregarded entity” for Tax purposes servicing of the Receivables); the Seller's funds and is not required to file Taxes under Applicable Lawassets, and pay records relating thereto, shall not be commingled with those of any Taxes so required Motor Coach Entity; and the separate creditors of the Seller will be entitled to be paid under Applicable Law, except for those Taxes being contested satisfied out of the Seller's assets prior to any value in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities Seller becoming available to maintain its separate existence; the Seller's equity holders;
(viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by contemplated under this Agreement, not pledge its assets as security for Agreement and the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions Related Documents and liabilities those associated with the creation and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives organization of the Borrower to act at all times with respect to Seller and the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions preparation of this Agreement and properly reflected on the books and records Related Documents, no Motor Coach Entity shall (A) pay the Seller's expenses; (B) guarantee the Seller's obligations, or (C) advance funds to the Seller for the payment of expenses or otherwise; and
(ix) all business correspondence of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any Seller and other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower communications shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section be conducted in the opinion of Dechert LLPSeller's own name, dated the date hereof, relating to certain nonconsolidation matterson its own stationery and through a separately-listed telephone number.
Appears in 1 contract
Samples: Receivables Sale Agreement (Motor Coach Industries International Inc)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to (i) maintain at least one Independent Manager; Excluded Amounts and (ii) each Agent Account, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its own separate books assets prior to those assets becoming available to its equityholders.
(i) It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and records and bank accounts; with the prior written consent of the Facility Agent (iiiwhich consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert Exxxxxxxx Xxxxxxxxxx (US) LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower shall not, without the prior written consent of the Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (d) the Independent Manager of the Borrower may not be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of the Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for the Independent Manager. No resignation or removal of the Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. The Independent Manager may not be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain conduct its business solely in its own separate books name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of TPVC or any Affiliate thereof.
i. It shall maintain records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity books of account separate from those of TPVC and any other Person; (Affiliate thereof.
ii. It shall obtain proper authorization for all action requiring such authorization.
iii. It shall pay its own operating expenses and liabilities from its own funds.
iv) . It will insure that the annual financial statements of TPVC shall disclose the effects of the transactions contemplated in the Transaction Documents in accordance with GAAP.
v. It will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have a board of managers separate from that its assets listed on any financial statement of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if TPVC provided that (Ai) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate TPVC and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate TPVC or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if sheet.
vi. It will continuously maintain the resolutions, agreements and other instruments of the Borrower prepares underlying the transactions described in the Transaction Documents as official records of the Borrower.
vii. It shall maintain an arm’s‑length relationship with TPVC and its own separate balance sheet); (ix) pay Affiliates, and shall not hold itself out or its own liabilities only out credit or assets as being liable for the debts and obligations of TPVC or any of its own funds; (x) Affiliates.
viii. It shall keep its assets and liabilities separate from those of all other entities.
ix. It shall maintain the books and records of the Borrower at the principal business office of the Borrower, unless the Borrower shall otherwise advise the parties hereto in writing.
x. It shall not maintain bank accounts or other depository accounts to which any Affiliate is an arm’s length relationship account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except that the Collateral Manager and the Equityholder may make deposits in such accounts if they receive funds of the Borrower in accordance with the Transaction Documents.
xi. It shall insure that any consolidated financial statements of TPVC have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
xii. It shall not become involved in the day-to-day management of any other Person.
xiii. It shall not permit any Person other than the Equityholder to become involved in the day-to-day management of the Borrower, except that the Collateral Manager is permitted to manage the assets of the Borrower pursuant to Article VII.
xiv. It shall not engage in transactions with any other Person other than those activities permitted by the Transaction Documents.
xv. It shall observe all formalities required of a limited liability company under the laws of the State of Maryland.
xvi. It shall allocate and each charge fairly and reasonably any common employee or overhead shared with Affiliates.
xvii. It shall not assume, pay or guarantee any other Person’s obligations or advance funds to any other Person for the payment of its other Affiliates; (xi) not expenses or otherwise or hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with .
xviii. It shall not act as an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations agent of any other Person; (xv) Person in any capacity.
xix. It shall not act as agent of Equityholder or any other Person nor permit Equityholder or any other Person to act as its agent, except to the limited extent permitted under the Transaction Documents.
xx. It shall correct any known misunderstanding regarding its separate identity; (xvi) identity from the Equityholder or any other Person.
xxi. It shall not permit any Affiliate to guarantee or pay its obligations other than customary indemnities in connection with one or more Transaction Documents.
xxii. It shall compensate its employees, consultants or agents, if any, from its own funds, and maintain adequate capital a sufficient number of employees in light of its contemplated business purposeoperations.
xxiii. It shall not engage in interaffiliate transactions except to the extent permitted by the Transaction Documents.
xxiv. It shall not permit the Equityholder or any other Person to (i) advance or contribute property to it by way of capital contribution, transactions and liabilities and pay its operating expenses and liabilities from its own assets; or (xviiii) cause its board to be made, any transfer or distribution of managers to meet at least annually or act the Borrower’s assets, except, in each case, as may be made pursuant to written consent the Transaction Documents or other duly authorized and keep minutes legal actions of such meetings the Equityholder and actions the Borrower.
xxv. It will not engage, directly or indirectly, in any business other than (i) acquiring, owning, holding and observe in otherwise managing each Contract and the Contract Collateral, (ii) entering into and performing its obligations under this Agreement, and (iii) activities incidental thereto.
xxvi. It will not own any asset or property other than each Contract, the Contract Collateral associated therewith and incidental personal property necessary for the ownership or operation of the foregoing.
xxvii. It will not incur, create or assume any Indebtedness except as expressly permitted hereunder.
xxviii. It will at all respects all other Delaware times comply with the provisions of its limited liability company formalities; agreement.
xxix. It will at all times be a limited liability company formed under the laws of the State of Maryland which has at least (xviiii) two independent directors and (ii) two springing members (as set forth in the Borrower’s limited liability company agreement).
xxx. It shall not acquire (A) amend, supplement or otherwise modify (i) its organizational documents, except in accordance therewith and with the obligations prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) its limited liability company agreement except in accordance therewith or (B) divide or permit any securities division of its Affiliates; (xix) itself.
xxxi. It shall cause the managersagents, officers, agents officers and other representatives of the Borrower Borrower, if any, to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions of this Section 10.5.
xxxii. It shall at all times hold itself out to the public and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member all other Persons as a legal entity separate from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documentsEquityholder and from any other Person.
(b) The Borrower xxxiii. It shall not (i) engagecommingle its assets with assets of any other Person.
xxxiv. It shall, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, not enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction.
xxxv. It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than provided, however, that the Collateral, any REO Asset Owner foregoing shall not require the Equityholder to make additional capital contributions to the Borrower. It will insure that it and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall Equityholder do not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLPOtterbourg P.C., dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (TriplePoint Private Venture Credit Inc.)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) i. The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets, (vii) amend, supplement or otherwise modify its organizational documents, except in accordance therewith and, in the case of provisions relating to the special purpose of the Borrower and the replacement of the Independent Manager, with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (viii) divide or permit any division of itself.
(c) ii. The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Agreement (FS KKR Capital Corp)
Separate Existence. Take all reasonable steps (aincluding, without limitation, all steps that the Program Agent or any Managing Agent may from time to time reasonably request) The to maintain the Borrower’s identity as a separate legal entity from each DT Entity and their Affiliates and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of the DT Entities and each other Affiliate thereof. Without limiting the generality of the foregoing, the Borrower shall operate in such a manner and be constituted so that it would not be substantively consolidated in the bankruptcy trust estate of any DT Entity or Affiliate thereof, the separate existence of the Borrower and any DT Entity or Affiliate thereof would not be disregarded, and each of the following statements will be true and correct at all relevant times: ACTIVE 200146376v.2
(i) the Borrower maintains and shall maintain separate records, books of account and financial statements from those of DTAC and its Affiliates;
(ii) except to the extent permitted pursuant to the Facility Documents and the Master Agency Agreement, the Borrower does not and shall not commingle any of its assets or funds with those of DTAC and its Affiliates;
(iii) the Borrower maintains and shall maintain an office separate from that of any other entity and a separate board of directors with at least two (2) Independent Directors and observes all separate limited liability company formalities, and all decisions with respect to the Borrower’s business and daily operations have been and shall be independently made by the officers of the Borrower pursuant to resolutions of its board of directors;
(iv) other than contributions of capital, payment of dividends and return of capital, no transactions have been or will be entered into between the Borrower and DTAC or between the Borrower and any of Affiliates of DTAC except such transactions as are contemplated by this Agreement and the Facility Documents, or as permitted by the Borrower’s organizational documents, and the Borrower shall not enter into or permit to exist any transaction (including, without limitation, any purchase, lease or exchange of property or the rendering of any service) with any DT Entity or Affiliate thereof which is on terms that are less favorable to the Borrower than those that might be obtained in an arm’s length transaction at the time from Persons who are not Affiliates and which is not evidenced by or pursuant to a written agreement;
(v) except for such administration and collection and functions as the Servicer may perform on behalf of the Borrower, the Borrower acts solely in its own name and through its own authorized officers and agents and the Borrower does not and will not act as agent of DTAC or any other Person in any capacity;
(vi) except for any funds received from DTAC or its members as a capital contribution or as otherwise permitted in this Agreement or any other Facility Document, the Borrower shall not accept for its own account funds from DTAC or its Affiliates; and the Borrower shall not allow DTAC or its Affiliates otherwise to supply funds to, or guarantee any obligation of, the Borrower;
(vii) the Borrower shall not guarantee, or otherwise become liable with respect to, any obligation of DTAC or its Affiliates;
(viii) the Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) times hold itself out to the public and all other Persons under the Borrower’s own name as a legal entity separate and distinct from DTAC and its Affiliates, and not hold itself out as a “division” of DTAC or its Affiliates;
(ix) the Borrower shall at all times maintain all of its liabilities and tangible and intangible assets, separate and readily identifiable, from those of DTAC and each and every Affiliate of DTAC or any other Person; Affiliate of such Affiliate;
(ivx) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes special purpose company and is has not required to file Taxes under Applicable Lawengaged, and pay does not presently engage and shall not engage, in any Taxes so required activity other than the activities undertaken pursuant to be paid under Applicable Lawthis Agreement and the Facility Documents and activities ancillary or incident thereto and transactions permitted pursuant to its organizational documents, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which has no indebtedness other than as created by, or set forth in, this Agreement or the Facility Documents;
(xi) the Borrower does not have any subsidiaries; ACTIVE 200146376v.2
(xii) the Borrower has established proper reserves on its books complied in accordance all material respects with GAAP; (vi) not commingle its assets all applicable laws, rules, regulations, and orders with assets of any other Person; (vii) conduct respect to it, its business in its own name and strictly comply with properties;
(xiii) all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that of the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness issued and outstanding membership interests of the Borrower from such Affiliate are owned by DTAC, and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted all distributions by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, DTAC shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected as distributions on the books and records of DTAC;
(xiv) the execution and delivery of this Agreement and the Facility Documents and the consummation of the transactions contemplated hereby and thereby were not made in contemplation of the insolvency of the Borrower or after the commission of any act of insolvency by the Borrower. The Borrower does not believe, nor does it have any reasonable cause to believe, that it cannot perform its covenants contained in this Agreement and the Facility Documents. The transactions contemplated by this Agreement and the Facility Documents are being consummated by the Borrower in furtherance of its ordinary business purposes, with no intent to hinder, delay or defraud any of its present or future creditors and with no view to preferring one creditor over another or to preventing the application of the Borrower’s assets in the manner required by applicable law or regulations. The consideration received by the Borrower as set forth herein is fair consideration having value reasonably equivalent to or in excess of the value of the Pledged Contracts and the performance of the Borrower’s obligations hereunder;
(xv) neither on the date of the transactions contemplated by this Agreement and the Facility Documents nor immediately before or after such transactions, nor as a result of the transactions, will the Borrower:
(A) be insolvent such that the sum of its debts is greater than all of its respective property, at a fair valuation in the normal course of its business operations;
(B) be engaged in or about to engage in business or a transaction for which any property remaining with the Borrower will be an unreasonably small capital or the remaining assets of the Borrower will be unreasonably small in relation to its respective business or the transaction; or
(C) have intended to incur, or believed it would incur, debts that would be beyond its respective ability to pay as such debts mature or become due. The Borrower’s assets and cash flow enable it to meet its present obligations in the ordinary course of business as they become due.
(xvi) both immediately before and after the transactions contemplated by this Agreement and the Facility Documents (y) the present fair salable value of the Borrower’s assets in the normal course of its business operations was or will be in excess of the amount that will be required to pay its probable liabilities as they then exist and as they become absolute and matured; and (z) the sum of the Borrower’s assets was and will be greater than the sum of its debts, valuing its assets at a fair salable value. This Agreement and the Facility Documents reflect bona fide transactions for legitimate business purposes;
(xvii) the Borrower (x) is not in violation of any laws, ordinances, governmental rules or regulations to which it is subject; (y) has not failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its property or to the conduct of its business; and (z) is not in violation in any material respect of any term of any agreement, charter, bylaw or instrument to which it is a party or by which it may be bound and, in each case, ACTIVE 200146376v.2 such violation or failure to obtain would have a material adverse effect on the business or condition (financial or otherwise) of the Borrower;
(xviii) all Tax returns or extensions required to have been filed by the Borrower in any jurisdiction have been filed, and all Taxes, assessments, fees and other governmental charges upon the Borrower, enter into or upon any transaction with an Affiliate of the respective properties, income or franchises of the Borrower, shown to be due and payable on such returns have been, or will be, paid when due. All such Tax returns are true and correct and the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division has no knowledge of any proposed additional Tax assessment against it in any material amount nor of any basis therefor;
(xix) the Borrower has no employees or “employee pension benefit plans” as such term is defined in Section 3 of ERISA; and
(xx) the Borrower shall take all other Person; or (vi) own any asset or property other than actions reasonably necessary on its part to operate its business and perform its obligations under the Collateral, any REO Asset Owner Facility Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to nonconsolidation and true sale matters of Snell& Xxxxxx L.L.P. delivered to the Program Agent and the related assets and incidental personal property necessary for Managing Agents in connection with the ownership Purchase Agreement on or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated about the date hereof, relating to certain nonconsolidation mattershereto.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Drivetime Automotive Group Inc)
Separate Existence. (a) The Borrower Such Loan Party shall at all times: (i) maintain at least one Independent Manager; (ii) maintain conduct its business solely in its own separate books name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of such Loan Party are available to pay the creditors of any of its equityholders or any Affiliate thereof (it being understood that the assets of the Securitization Subsidiaries shall be pledged to secure the obligations of the Borrower).
(b) It shall maintain records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity books of account separate from any other Person; (iv) have a board of managers separate from that those of any other Person; (v) file its own Tax returns, except to the extent that such Loan Party’s financial and operating results are consolidated with those of the Equityholder in consolidated financial statements or to the extent any Securitization Subsidiary’s financial and operating results are consolidated with those of a Loan Party.
(c) It shall pay its own operating expenses and liabilities from its own funds (other than in connection with administrative and other expenses owed by Securitization Subsidiaries, which may be paid by the Borrower); provided that, the Servicer may from time to time advance expenses of the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Servicer is later reimbursed pursuant to the priority of payments set forth in Article VIII.
(d) It shall ensure that the annual financial statements of the Borrower has established proper reserves on its books and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP; .
(vie) It shall not commingle its assets with assets hold itself out as being liable for the debts of any other Person; (vii) conduct . It shall not pledge its business in its own name and strictly comply with all organizational formalities assets to maintain its separate existence; (viii) maintain separate financial statements; providedsecure the obligations of any other Person. It shall not guarantee any obligation of any Person, however, that the Borrower’s assets may be included in a consolidated financial statement of its including any Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy or become obligated for the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not or hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for pay the obligations of any other Person; .
(xvf) correct any known misunderstanding regarding It shall keep its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions assets and liabilities and pay its operating expenses and liabilities separate from its own assets; (xvii) cause its board those of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person (other than any Securitization Subsidiary).
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entityPerson, including any Affiliate.
(h) To the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special memberextent required under GAAP, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from it shall ensure that any consolidated financial statements including the Borrower, shall immediately become if any, have notes to the member of effect that the Borrower in accordance with is a separate entity whose creditors have a claim on its organizational documentsassets prior to those assets becoming available to its equityholders.
(bi) The Borrower It shall not (iA) engageamend, directly supplement or indirectlyotherwise modify its Constituent Documents, except in any businessaccordance therewith and, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance connection with entering into the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under , with the terms and conditions of this Agreement and properly reflected on the books and records prior written consent of the BorrowerFacility Agent (which consent shall not be unreasonably withheld, enter into delayed or conditioned; provided that, the Facility Agent’s prior written consent in its sole discretion shall be required with respect to any transaction with an Affiliate amendment amending the definition of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; “Cause”, “Independent Manager” or “Material Action”) or (vB) identify itself as a department divide or permit any division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsitself.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person[reserved]; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAPAppropriate Accounting Principles; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers member(s) or managing member to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(b) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.,
Appears in 1 contract
Samples: Loan and Servicing Agreement (Blue Owl Capital Corp III)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that its annual financial statements and the annual financial statements of its Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person, it shall not pledge its assets to secure the obligations of any other Person, it shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholder.
(i) maintain It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholder to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert Xxxxxxxxx Xxxxxxxxxx (US) LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of the applicable Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (a) at all times there shall be, and the Borrower shall cause there to be, at least one Independent Manager; (b) the Borrower may not, without the prior written consent of the Independent Manager, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (c) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Stellus Private Credit BDC)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the annual consolidated financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(i) maintain It shall not (A) amend, supplement or otherwise modify the Special Purpose Provisions contained in its organizational documents (as defined therein), except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its member and its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its organizational documents and properly reflected on the its books and records of the Borrowerrecords, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person, except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and FactsAssumptions” section in the opinion or opinions of Dechert Eversheds Sutherland (US) LLP, dated the date hereof, relating to certain nonconsolidation matters or the “Facts and Assumptions” section in the opinion of Eversheds Xxxxxxxxxx (US) LLP, dated the date hereof, relating to certain true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior written consent of at least one Independent Manager (or the unanimous written consent of all Independent Managers, if more than one). The organizational documents of the Borrower shall include the following provisions: (a) at all times there shall be, and Borrower shall cause there to be, at least one Independent Manager (or the unanimous written consent of all Independent Managers, if more than one); (b) the Borrower shall not, without the prior written consent of at least one Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager(s) shall consider only the interests of the Borrower, including its creditors; and (c) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (ii) if a replacement, the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Capital Southwest Corp)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person[reserved]; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be USActive 57084911.14 -98- made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (B) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers member or members to meet at least annually or act pursuant to written consent and keep minutes of such all meetings and actions by written consent and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its AffiliatesAffiliates (except as otherwise permitted under the Transaction Documents); (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower[reserved]; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(ba) The Borrower shall not (i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a)) or otherwise pursuant to the Transaction Documents; (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the books and records of the Borrower, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner Collateral and the related assets and incidental personal property necessary for the ownership or operation of these assets.
(c) The Borrower shall not (and shall not permit the Equityholder to) take any action contrary to the “Assumptions and Facts” section in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation matters.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Separate Existence. (a) The Borrower shall at conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and shall use its best efforts to avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and books of account separate from those of any other Person.
(c) It shall pay its own operating expenses and liabilities from its own funds.
(d) It shall ensure that the annual financial statements of the Borrower and the Equityholder shall disclose the effects of the transactions contemplated hereby in accordance with GAAP.
(e) It shall not hold itself out as being liable for the debts of any other Person. It shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being available to pay the obligations of any other Person.
(f) It shall keep its assets and liabilities separate from those of all times: other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(g) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(h) To the extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equityholders.
(i) maintain It shall not (A) amend, supplement or otherwise modify its Constituent Documents, except in accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned) or (B) divide or permit any division of itself.
(j) It shall at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) all times hold itself out to the public and all other Persons as a legal entity separate from its Affiliates and from any other Person; .
(ivk) have a board of managers It shall file its own tax returns separate from that those of any other Person; (v) file its own Tax returns, except to the extent that the Borrower it is treated as a “disregarded entity” for Tax tax purposes and is not required to file Taxes tax returns under Applicable Law, and shall pay any Taxes so federal and other material taxes required to be paid under Applicable Law.
(l) It shall conduct its business only in its own name and comply with all organizational formalities necessary to maintain its separate existence.
(m) It shall maintain separate financial statements, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle showing its assets with and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; (vii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (viii) maintain separate financial statements; provided, however, that the Borrower’s its assets may be included in a consolidated financial statement of its Affiliate if so long as (Ai) appropriate notation shall be made on such consolidated financial statements (if any) to indicate the its separateness of the Borrower from such Affiliate and to indicate that the Borrower’s its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (Bii) such assets shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xvii) cause its board of managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all respects all other Delaware limited liability company formalities; (xviii) not acquire the obligations or any securities of its Affiliates; (xix) cause the managers, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bn) The Borrower It shall not (i) engagenot, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement its Constituent Documents and properly reflected on the its books and records of and the Borrowertransactions contemplated by the Transaction Documents, enter into any transaction with an Affiliate of the Borrower except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction; .
(vo) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(p) It shall use separate invoices bearing its own name.
(q) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(r) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(s) It shall not acquire any obligation or securities of its members or of any Affiliate other than the Collateral in compliance with the Transaction Documents.
(vit) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(u) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets other than such activities as are expressly permitted pursuant to the Transaction Documents.
(v) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly contemplated by the Transaction Documents.
(w) Except as expressly permitted by the Transaction Documents (which permits, for the avoidance of doubt, the formation of REO Asset Owners), it shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, other than any equity interests received in connection with any workout or exchange of any Collateral Obligation, or any insolvency of the related Obligor.
(x) It shall not own any asset or property other than Collateral and such other financial assets as permitted by the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetsTransaction Documents.
(cy) The Borrower It shall not engage, directly or indirectly, in any business other than as required or permitted to be performed by the Transaction Documents.
(z) It shall allocate fairly and shall not permit reasonably any overhead expenses that are shared with any of its Affiliates, including for shared office space and for services performed by an employee of any Affiliate.
(aa) Neither the Borrower nor the Equityholder to) shall take any action contrary to the “Assumptions and Facts” section in the opinion or opinions of Dechert Winston & Xxxxxx LLP, dated the date hereof, relating to certain nonconsolidation and true sale matters.
(bb) Neither the Servicer nor any other person shall be authorized or empowered, nor shall they permit the Borrower to take any Material Action without the prior unanimous written consent of one Independent Manager. The Constituent Documents of the Borrower shall include the following provisions: (i) at all times there shall be, and Borrower shall cause there to be, at least one Independent Managers; (ii) the Borrower shall not, without the prior written consent of one Independent Manager, on behalf of itself or Borrower, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Manager shall consider only the interests of the Borrower, including its creditors; and (iii) no Independent Manager of the Borrower may be removed or replaced unless the Borrower provides Lender with not less than five (5) Business Days’ prior written notice of (x) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (y) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the Constituent Documents of the Borrower for an Independent Manager. No resignation or removal of an Independent Manager shall be effective until a successor Independent Manager is appointed and has accepted his or her appointment. No Independent Manager may be removed other than for Cause.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Vista Credit Strategic Lending Corp.)
Separate Existence. (a) The Borrower shall at all times: (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from any other Person; (iv) have a board of managers separate from that of any other Person; (v) file its own Tax returns, except to the extent that the Borrower is treated as a “disregarded entity” for Tax purposes and is not required to file Taxes under Applicable Law, and pay any Taxes so required to be paid under Applicable Law, except for those Taxes being contested in good faith by appropriate proceedings and in respect of which the Borrower has established proper reserves on its books in accordance with GAAP; (vi) not commingle its assets with assets of any other Person; (vii) conduct its business solely in its own name through its duly authorized officers or agents so as not to mislead others as to the identity of the entity with which such persons are concerned, and strictly comply with all organizational formalities shall use its best efforts to maintain its separate existence; (viii) maintain separate financial statements; provided, however, avoid the appearance that it is conducting business on behalf of any Affiliate thereof or that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy pay the debts and other obligations creditors of such Affiliate UACC or any Affiliate thereof (other Person than as expressly provided herein).
(b) It shall maintain corporate records and books of account separate from those of UACC and any other Affiliate thereof.
(Bc) It shall obtain proper authorization for all corporate action requiring such assets authorization.
(d) It shall also be listed on the Borrower’s own separate balance sheet (if the Borrower prepares its own separate balance sheet); (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s length relationship with the Equityholder and each of its other Affiliates; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space; (xiii) use separate stationery, invoices and checks; (xiv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xv) correct any known misunderstanding regarding its separate identity; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; funds.
(xviie) cause its board It will insure that the annual financial statements of managers to meet at least annually or act pursuant to written consent and keep minutes UACC shall disclose the effects of such meetings and actions and observe the transactions contemplated hereby in all respects all other Delaware limited liability company formalities; accordance with GAAP.
(xviiif) not acquire the obligations or any securities of its Affiliates; (xix) cause the managersThe resolutions, officers, agents agreements and other representatives instruments of the Borrower to act at all times with respect to underlying the transactions described in the Transaction Documents shall be continuously maintained by the Borrower consistently and in furtherance of the foregoing and in the best interests as official records of the Borrower; and (xx) maintain at least one special member, who, upon the dissolution of the sole member or the withdrawal or the disassociation of the sole member from the Borrower, shall immediately become the member of the Borrower in accordance with its organizational documents.
(bg) The Borrower It shall maintain an arm’s-length relationship with UACC and its other Affiliates, and shall not hold itself out as being liable for the debts of UACC or any of its other Affiliates. [**CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS DOCUMENT]
(h) It shall keep its assets and liabilities separate from those of all other entities other than as permitted by the Transaction Documents.
(i) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the preceding clause (a); (ii) fail to be solvent; (iii) release, sell, transfer, convey or assign any Collateral Obligation unless in accordance with the Transaction Documents; (iv) except for capital contributions or capital distributions permitted under the terms and conditions of this Agreement and properly reflected on the The books and records of the BorrowerBorrower shall be maintained at the address designated herein for receipt of notices, enter into any transaction with an Affiliate of unless the Borrower except on commercially reasonable terms similar to those available to unaffiliated shall otherwise advise the parties hereto in an arm’s-length transaction; (v) identify itself as a department or division of any other Person; or (vi) own any asset or property other than the Collateral, any REO Asset Owner and the related assets and incidental personal property necessary for the ownership or operation of these assetswriting.
(cj) The Borrower It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals, except as otherwise permitted by the Transaction Documents.
(and k) It shall insure that any consolidated financial statements of UACC have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders.
(l) It shall not permit amend, supplement or otherwise modify (i) its organization documents, except in accordance therewith and with the Equityholder toprior written consent of the Required Lenders (which consent shall not be unreasonably withheld) take any action contrary to the “Assumptions and Facts” section or (ii) its bylaws except in the opinion of Dechert LLP, dated the date hereof, relating to certain nonconsolidation mattersaccordance therewith.
Appears in 1 contract
Samples: Receivables Financing Agreement (United Pan Am Financial Corp)
